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January 15, 2005

A capital-driven Booker break

With all the Booker action, I have not had a chance to keep up with the still percolating death penalty developments in an important month for capital punishment. Helpfully, other bloggers have collected news and other materials concerning the legal battles surrounding efforts to halt executions scheduled for the days ahead in California and Connecticut.

In California, condemned killer Donald Beardslee has thus far failed in all his legal appeals and now may need a grant of executive clemency to avoid becoming the 11th person executed in the state in the modern capital era on Wednesday. How Appealing has chronicled this story here and here, and Criminal Appeal also has a notable Beardslee post here.

In Connecticut, the news concerns others' efforts to stop the execution of serial killer Michael Ross, who has given up all his appeals. Details from How Appealing are here and here, and Kirby's Reports has been covering the Ross case extensively, as highlighted here and here and here.

Booker blogshpere afternoon

Just a quick post to spotlight that Howard Bashman at How Appealing has the daily dose of Booker newspaper stories and editorials here. It might be interesting, if anyone has the time, to assemble in one place all the quotes from judges that appear in all the articles there and here and here and here and here.

In addition, TalkLeft has here some commentary by TChris, Booker's lawyer, drawing on some of today's editorials. Also, I please note that I am encouraging those in the federal system to report federal Booker rulings here, and also state actors to report any post-Booker state Blakely developments here.

But everyone should, as I have urged before, take a deep breath before coming to any big judgments about Wilson or Booker or anything else we see and read about the future of federal sentencing in the days ahead. Moreover, in this post (and perhaps future ones), I will try to give some reasons why the Wilson decision, as I suggested here, merits far more praise than criticism.

1. Consider the crime: Judge Cassell gave "heavy weight to the Guidelines" in a case involving a armed bank robbery committed by a defendant with an extensive criminal history. Wilson slip op. at 28-29. Few have criticized the length of federal guideline sentences in these sorts of cases (as opposed to non-violent crimes by first offenders), and the sentence of 15+ years for defendant Wilson (188 months) actually seems quite moderate for a "five-time" felon who committed a serious crime with a sawed-off shotgun that terrorized victims. Id. at 30.

2. Consider the context: The defendant in Wilson had apparently admitted all the guidelines facts and signed a Blakely waiver. Id. at 31-32. Consequently, if the Stevens/Scalia/Thomas proposed remedy in Booker had carried the day, it seems Judge Cassell would have been required to impose a sentence of no less than 188 months and would have had (unreviewable) discretion to impose a sentence up to 235 months. But, because Breyer's remedy carried the day, Judge Cassell clearly had discretion to impose a sentence less than 188 months and, arguably because of the parsimony mandate (discussed here), did not have discretion to go above 188 months. See id. at 6 & 21-26.

3. Consider the decision: Judge Cassell's ruling is direct, clear, cogent and provides needed and extremely helpful (and immediate!) guidance for lawyers and defendants facing sentencings in his court. He also provides an expressly purpose-driven account and defense of the federal guidelines — and along the way invigorates the parsimony mandate, see id. at 21-23 and my parsimony post here — which is more thoughtful and transparent than any federal sentencing decision I have ever seen.

Though I disagree with a number of Judge Cassell's substantive conclusions in Wilson, his work is (super-fast) judging at its finest — unlike, I have to say, some of the judicial work of the DC Nine earlier in the week. Moreover, in addition to expressly refusing to enforce the defendant's Blakely waiver, id. at 32, Judge Cassell gave the parties 10 days to file any and all objections to his ruling so he could reconsider his conclusions in light of further input from the parties.

4. Consider the decision-maker: Wilson is the view of the post-Booker world from just one (very smart) district judge. Let's see what some other very smart district judges —particularly those judges working toward a place in the Sentencing Judges Hall of Fame such as Judges Bataillon and Gertner and Goodwin and Holmes and Lynch and Molloy and Weinstein and Young and so many others — have to say on these matters. (And, of course, we also have to hear from the entire cadre of circuit judges and probably the DC Nine, too, before we can really assess what Booker has done for federal sentencing.)

Justice Breyer sought recusal advice

Tony Mauro is reporting in this first-rate law.com article that "Supreme Court Justice Stephen Breyer, author of the key opinion in last week's sentencing guidelines decision, consulted a legal ethics expert last summer before deciding that he could rule on the issue." The article provides all the details and highlights that Justice Breyer sought advice from Prof. Gillers on this issue in early July, well before the acting Solicitor General had moved for cert.

Kudos to Justice Breyer for spotting this ethics issue right away and for seeking the advice of others as he thought through this matter (and also for coming to the right conclusion, in my opinion, about whether he should be involved in Booker).

Booker basics and more commentary

Not surprisingly, everyone is puzzled trying to figure out Booker. As I have suggest in various ways, only through a lot of litigation will we even start to get a sense of what the decision "really" means (which is why I am encouraging those in the federal system to report federal Booker rulings here, and also state actors to report any post-Booker state Blakely developments here).

Also, recall that I tried to summarize Booker's essence in this post, and I have collected a wealth of links to my commentary and others' here and here. And Judge Cassell's Wilson ruling (about which I will have a lot more commentary later today) provides one district judge's view of the post-Booker world.

Remembering the Blakely state stories

Not surprisingly, the decision in Booker has started a dramatic and uncertain new federal chapter in the Blakely story. But, as I suggested in this post, I still think the federal sentencing story after Booker is a relatively minor (headline-grabbing) solar system within a vast Blakely universe. We should never forget that states handle over 90% of the criminal cases nationwide, and both Blakely and now Booker provide many more questions than answers for state actors and institutions.

Notably, I there are on-line 15 state Blakely rulings in just the last three days (though I've not had a chance to read any), and I keep wondering if any state courts or litigants find in Booker anything that may significantly alter the state Blakely analysis. So, while those in the federal system are reporting federal Booker stories here, perhaps state actors might use the comments of this post to report or reflect on what Booker could mean for them.

Wonderfully, my amazing research assistant today finished an updated Word version of all my blog posts on Blakely in the states. That (141-page) document, which is organized by states and shows 29 different states with some Blakely developments, can be downloaded below. In addition to establishing that I have apparently already written a small book on Blakely in the states, the document available below reinforces how dynamic and uncertain the Blakely world remains even without giving a moment's thought to Booker.

January 14, 2005

Report your Booker stories here

I have received a very thoughtful request to start a "post with the goal of collecting 'Booker stories' from the district courts around the country via the comments." As the request stated, "having a single place for that information could make it easier to get a handle on exactly what is going on 'on the ground' in the wake of Booker."

So, this post is for Booker stories. The requestor got things started by reporting on two sentencings in his building in the Southern District of West Virginia today by two different judges. Here's the report:

Both were low offense level cases, but both judges mentioned Booker in one way or another. In the first case, the defendant's offense level came in at 12 (marijuana conspiracy charge). The defendant spent 4.5 months in custody following her arrest and has since been on bond and going through drug rehab. The judge noted that the Guidelines were now advisory, but proceeded to impose a Guideline-sanctioned sentence of 10 months imprisonment, 4.5 already served and 5.5 on home confinement, and 3 years of supervised release.

In the second case, the defendant also came in at an offense level of 12 (theft charge). The defendant is 81 years old and very ill. After noting the advisory nature of the Guidelines, which would have required some time "in custody," the judge imposed a sentence of a 10-month term of home confinement as a condition of that probation. The judge used his new-found power under Booker to avoid the requriements of Zone C of the Sentencing Table that would have required at least 5 months of actual incarceration.

So it appears that, in the SDWV at least, the "advisory" nature of the Guidelines may provide some relief, although there have been no hearings with seriously contested enhancements or relevant conduct yet, to my knowledge. No word from Judge Goodwin yet, either.

Weekend plans...

I am back from a terrific experience talking about the sentencing world at the UNC School of Law. I always get new insights talking to smart folks about this stuff, and all of the dialogue got me even more mixed up (as does Judge Cassell's Wilson opinion) about whether to love or hate (or both love and hate) every aspect of the Booker ruling.

In any event, I am planning to take the greatly needed long weekend to catch my breath and take stock. I hope to be able to do some further commentary on Booker and Wilson, and I also hope to be able to share other commentary I see or receive. (Thankfully, I see this afternoon from SCOTUS blog here that no opinions are expected from the High Court next week, so we do not (yet) have to worry about a decision in Shepard or Roper on top of Booker.)

I would bet that a lot of readers might now have plans for drafting Booker motions this weekend. I will try my best to link to, or provide copies of, any notable Booker motions that I see. Happy drafting.

Judge Cassell proves his brilliance, who's next?

I now have to go off line for most of the afternoon to travel to do my faculty workshop at the UNC School of Law, but I have had a chance to skim Judge Cassell's Wilson opinion (here) and have to quickly comment that it is absolutely brilliant (even in those spots when I think it is wrong). No offense to the wise Nine in DC, but Judge Cassell has advanced the federal sentencing world far more in a day than SCOTUS could manage in sixth months. (Is it too early to throw Judge Cassell's name into the CJ Rehnquist replacement sweepstakes?)

I will have lots of commentary on Judge Cassell's work late tonight and throughout the weekend. But for now I must just stress that, as he did after Blakely through Croxford, Judge Cassell in Wilson has framed and defined the issues for debate in the wake of Booker. And I am certain his views on these issues in Wilson, just as his views in Croxford, will not be universally embraced. Indeed, I am so excited not only to have a chance to read Wilson closely, but to see what Judges Bataillon and Gertner and Goodwin and Holmes and Lynch and Weinstein and all the other fine folks having to work this through on the ground have to say in response. The new federal sentencing world will be built opinion by opinion, and I suspect the new world will both be beautiful and grotesque (at least to my tired eyes).

Judge Paul Cassell speaks first again!!

I should not be surprised that the always speedy and brilliant US District Judge Paul Cassell, who got in the amazing first written word in Blakely with his Croxford opinion, has now gotten in the first word on Booker through US v. Wilson, Case No. 2:03-CR-00882 (D. Utah Jan. 13, 2005) (available here).

Here's the key opening of a 39-page opinion that is today's (first?) must read:

In light of the Supreme Court’s holding, this court must now consider just how “advisory” the Guidelines are. The court has before it for sentencing defendant James Joseph Wilson, who has pled guilty to armed bank robbery. In view of his lengthy criminal record and his brandishing of a sawed-off shotgun at several tellers, the Guidelines advise a prison sentence of no less than 188 months. What weight should the court give to this recommended sentence? This issue of the weight to be given to the advisory Guidelines will, of course, recur in all of the court’s sentencings unless and until Congress responds to Booker.

Having reviewed the applicable congressional mandates in the Sentencing Reform Act, the court concludes that considerable weight should be given to the Guidelines in determining what sentence to impose. The Sentencing Reform Act requires the court to impose sentences that “reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, [and] protect the public.” The court must also craft a sentence that “afford[s] adequate deterrence to criminal conduct” and “protect[s] the public from further crimes of the defendant.” Finally, the court should “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

Over the last 16 years, the Sentencing Commission has promulgated and honed the Guidelines to achieve these congressional purposes. Congress, too, has approved the Guidelines and indicated its view that Guidelines sentences achieve its purposes. Indeed, with respect to the congressionally-mandated goal of achieving uniformity, the Guidelines are the only way to create consistent sentencing as they are the only uniform standard available to guide the hundreds of district judges around the country. Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons. In this particular case, the court will follow the Guidelines and give Wilson a sentence of 188 months.

A day late and a Booker short

The Eighth Circuit wins the award for having on-line the first federal ruling discussing Blakely that I could find after Booker was handed down. However, even though US v. Walker, 2005 WL 66272 (8th Cir. Jan. 13, 2005), is dated Thursday, Jan. 13 (the day after Booker changed the federal sentencing world on Wednesday January 12), the Eighth Circuit in a footnote in Walker says:

Walker has requested leave to file a supplemental brief on the applicability of Blakely v. Washington, 124 S.Ct. 2531 (2004), which we have denied. However, we reserve ruling on the applicability of the Blakely reasoning to this case until the Supreme Court issues its opinions in United States v. Booker and United States v. Fanfan.

Of course, the Eighth Circuit should not be criticized for this quirk of timing; the Supreme Court itself showed us quite clearly through Booker that federal justice often moves more slowly than we might hope.

On a more serious front, I am eager to see when and how lower federal courts around the country start dealing with Booker in written opinions. I hope to be able to share and analyze these opinions as soon as they are available.

Eureka!! Tangible evidence of a flip-flop

As we all scratch our heads trying to figure out what Booker means, it seems appropriate to wonder what prompted Justice Ginsburg to "switch teams" on the right and remedy questions. And, in a great discovery (which proves the value of reading even dissenters' footnotes very carefully), Jon Wool of the Vera Institute has discovered tangible evidence suggesting Justice Ginsburg at some point was prepared to stick with the Blakely five on the remedy question.

Let me reprint Jon's note to me in full, since his account of the story is very effective:

A Switch that Took Time?

One reason the Supreme Court took as long as it did to decide the time-sensitive Booker and Fanfan cases may be that a split occurred in a once-unified majority, creating a separate remedial majority. It is not uncommon for a majority opinion to become a dissent when one justice switches sides midstream. When this happens, the author of the former majority opinion must amend the opinion’s references to “the dissent” to read “the majority,” among other changes. It appears that Justice Stevens’s dissent on the remedial question missed one such amendment. In footnote 8 of that dissent, Justice Stevens comments on a prior case’s striking of an entire statute and contrasts that with the present Court’s approach. He refers to the present approach, however, “as the dissent would have us do,” rather than “as the majority now does.” Both the use of the term “dissent,” when in fact he is the dissenter on this question, and the use of a subjunctive rather than perfect tense, strongly suggest that Stevens’s dissent once was a portion of a unified majority opinion. Which justice came to reject Justice Stevens’s remedial approach in favor of Justice Breyer’s? Justice Ginsburg is a good bet; she voted with the four dissenters in the substantive portion of the majority opinion, as she did in Apprendi and Blakely, and is the swing vote for the remedial majority.

Great work by Jon to be the first, to my knowledge, to spot this telling footnote typo in Justice Stevens's dissent. I wonder if we might ever get some insider account of the in-chambers lobbying that must have taken place over Justice Ginsburg's vote.

Good start USSC, while DOJ promotes guidelines

In an impressive contrast to its long silence following Blakely, the US Sentencing Commission is continuing its recent tendency to take a more proactive and visible role in charting the future of federal sentencing (as it should). The day after Booker, USSC Chair Judge Hinojosa released this official statement, which highlights the work the USSC has already done in the wake of Blakely and stresses that the "U.S. Sentencing Commission is in a unique position to continue to assist all three branches of government during this period of transition."

Though Judge Hinojosa's statement many not seem all that substantive, the message in the statement is extremely important and could help Congress understand that it should take a breather and allow the USSC, a uniquely positioned and uniquely important agency, to be primarily responsible for starting to sort out the post-Booker world. I hope the USSC will continue to act boldly and seek to lead during this period of such uncertainty.

Of course, as Ron Wright and I and commentators note here, how Congress and Justice Department are sizing up Booker and its aftermath is a subject worthy of great debate. And, as I noted, DOJ's perspective may be, practically speaking, the most important to track. On this point, here is a link to Assistant AG Chris Wray's official DOJ response to Booker delivered on Wednesday immediately after the decision. One key section states:

[I]t is important to note that in spite of this ruling, federal sentencing guidelines remain a critical part of the process to achieve justice. District courts are still required to consult the federal sentencing guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable. To the extent that the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent.

Because of what Booker says (and also fails to say), I suspect there are divisions of opinion and uncertainties in all three branches in the wake of the decision. The fact in turn makes the USSC's work and leadership that much more important going forward. I am pleased with the USSC's start, but the really hard work lies ahead.

Copious commentary from SL&P's Booker Tonight

I hope baseball fans might appreciate the cryptic title of this post: I am trying to analogize the Booker commentary here to the amazing baseball commentary on ESPN's Baseball Tonight. The analogy seems apt because, for sentencing fans like me, Booker is the thrilling seventh game of a World Series to decide the fate of the federal sentencing guidelines. (The first six games were, of course, Almendarez-Torres, Jones, Apprendi, Harris, Cotton and Blakely.)

Amazingly, though Booker has now been decided (apparently in extra innings), we still do not know who won. Thus we need the help of commentators, the sentencing egg-head versions of ESPN's Karl Ravech, Harold Reynolds, Tim Kurkjan, and Peter Gammons. And here I provide more commentary than anyone could possibly want.

Second, I have for downloading below (1) a wonderfully thoughtful and insightful e-mail dialogue between Professors Frank Bowman and Alan Michaels about the realities of the Breyer remedy in Booker, and (2) a (typo-filled) transcript of yesterday's tele-conference organized by Families Against Mandatory Minimums in which many informed commentators shared their first takes on Booker. Both documents are right with insights and food-for-thought.

So much to say ... where to begin?

After a long and rainy drive, I am on-line in North Carolina. Having had time to reflect on some of the opinions and also having now quickly reviewed my e-mail, I am a bit overwhelmed by how much I want to say and share about Booker based on new developments, commentary I have received from others, and my own latest thoughts.

To begin slowly, let me first thank Professor Ron Wright for his able guest blogging this afternoon. I also want to thank everyone who has sent me thoughts and materials via e-mail, as well as everyone who has posted comments on the blog. (I have received roughly 300 substantive e-mails, and see more than 225 blog comments, now just over 36 hours since Booker's release).

I have added a few of my own thoughts to Ron's provocative posts on provoking Congress and Breyer's Ouiji Board, and I expect my Booker buzz will also allow me to share additional thoughts and materials in some coming posts.

January 13, 2005

Booker and provocation of Congress

POST FROM RON WRIGHT:Obviously, the Justices are not involved in a chess match with Congress. They have not anticipated (and cannot anticipate) three moves ahead. But it also seems likely that the Justices gave some thought to the likely congressional reaction to their ruling. Which of the two remedies the Court debated make a quick congressional response more likely?

At first blush, I would guess that the Stevens/Scalia remedy -- keep the binding guidelines, but add jury factfinding or waiver where necessary -- had the best chance to create a stable outcome that Congress would accept, at least in the short run. DOJ had already learned to maneuver in this type of system, and treated this as a fall-back position in their arguments to the court.

On the other hand, the Breyer remedy -- advisory guidelines that still must be consulted in each case -- may itself produce only incremental change. In the short run, all the courtroom actors know what to do under this system. Perhaps judges will change sentencing patterns slowly enough, and in small enough increments, that they will not provoke a reaction from Congress.

On the third hand, there may be members of Congress who are anxious to amend the federal sentencing laws, and it does not matter to them which of the different remedies the Court chose. Whatever the opinions say, they create an opening for change.

Any thoughts from readers on which of the available remedies was the most or least likely to provoke a major and immediate congressional restructuring of the sentencing laws?

LATER ADDITIONAL COMMENTARY FROM DOUG BERMAN: Ron and the first 17 comments raise many good points, but on this front I particularly want to spotlight that the development of federal sentencing law and policy is more like chinese checkers than chess, because we have multiple players, not just the courts and Congress. And the player who truly has the biggest marbles is the Justice Department, a fact which was demonstrated by DOJ's ability to get the Feeney Amendment enacted (and which has been astutely stressed by Professors Frank Bowman and Marc Miller in their post-Feeney commentary on the state of the federal system).

What this all means is that, were the Court being truly pragmatic in Booker, it would also be concerned about what remedy would be likely to provoke DOJ. And, on this front, I think we can identify a clear difference in the Stevens and Breyer remedies. DOJ had indicated post-Blakely, both through its litigation strategies and various official statements, that it would not be happy with the Stevens' approach of "Blakely-izing" the guidelines. But I have a feeling that DOJ may be content, at least in the short-term, with Breyer's remedy (especially if DOJ can get some quick appellate rulings that following the guidelines is per se reasonable).

Here, then, is one of the many great ironies of Breyer's opinion for the Court in Booker. Breyer claims, quite expressly at p. 14 of his opinion for the Court, that the Stevens remedy would give prosecutors more power than his remedy. But if this was really true, why would DOJ resist so greatly the Stevens remedy and essentially seek the remedy that Breyer created for the Court?

(Tellingly, in Part IV of his opinion for the Court, Justice Breyer recognizes that his remedy "coincides significantly" with DOJ's proposed remedy and that he is rejecting the defenses' remedies which accord with Justice Stevens' approach. But, echoing the debate between Justices Scalia and Breyer in Blakely,Breyer apparently continues to believe that prosecutors gain power when defendants have more rights at sentencing, even though the litigation strategies of both DOJ and the defense bar suggests otherwise.)

Severability as a Ouija Board

POST FROM RON WRIGHT:Doug asked me to step in for a few hours while he's on the road. It's always a pleasure.

I've been reading through the Booker opinions pretty slowly, trying to edit them for use by law students (the cases will go into an Instant Supplement to the casebook that I edit with Doug, Nora Demleitner, and Marc Miller). Doug made the point earlier that the Breyer opinion relies on some shaky legal reasoning to craft, by judicial fiat, a substantively attractive guideline system. That point became especially clear to me in reading the passages in Breyer's opinion dealing with the standard of appellate review.

Breyer, it seems to me, uses the severability doctrine like a Ouija Board. He points the doctrine at the entire body of federal sentencing statutes, and which statutory sections does this doctrine instruct the Court to excise? It points to the mandatory power of the guidelines for District Court judges, and the Feeney Amendment's change to the appellate enforcement mechanism. The guidelines still must be consulted, the Sentencing Commission and probation officers continue to do their work to support judges, but the much-reviled Feeney Amendment must fall. Remarkable, isn't it, that the severability Ouija Board instructs the Justices to strike down precisely the two provisions that are most unpopular as a policy matter among federal judges?

LATER ADDITIONAL COMMENTARY FROM DOUG BERMAN: Ron proves his brilliance (though perhaps also shows his age) through his Ouiji Board analogy to describe Justice Breyer's remedial handiwork. I write simply to spotlight the particular irony that Justice Breyer claims his (Ouji Board) severability moves are to serve "Congress' basic goal ... of increased uniformity." But Congress clearly believed in 1984 when it enacted the Sentencing Reform Act, and in 2003 when it passed the Feeney Amendment, that increased uniformity is served by having mandatory guidelines and by a de novo standard of review of departures. Nevertheless, now according to Justice Breyer purportedly divining Congressional intent, those aspects of the federal sentencing system have to be tossed in the name of achieving "increased uniformity."

Collected Booker commentary

I am about to hit the road to travel to North Carolina to do a faculty workshop at the UNC School of Law, and thus I will have to be off-line the rest of the day. (Thanks for the great timing, SCOTUS!) Also, the blog service has been cranky today, so my apologies for the comments feature not always working. (Thanks for the great timing, Typepad!)

Nevertheless, I have been able to collect below all my substantive Booker posts so far, which now also include nearly 200 comments from readers (which are often substantial, always insightful, and sometimes truly brilliant). By the time you read and digest all that, as well as all the media pieces here and here and here, and all the blog coverage here and here (with Orin Kerr having another great take here), I should be back on-line.

Take a deep breath.....

As I have suggested in some prior posts, I think the only certainty about the future of federal sentencing after Booker is uncertainty. Uncertainty about how Booker will be interpreted and applied, uncertainty about how individuals and courts should react, uncertainty about how Congress and the US Sentencing Commission can and should respond.

But I am certain that everyone (myself included) should take a deep breath and not even expect to be able to figure all this out instantly. In particular, I think it is especially important for Congress to act cautiously, hold hearings, consult in an open and deliberative way with the US Sentencing Commission, the Justice Department, defense groups and judges of all sorts to chart a sound and sensible path for the future of the federal criminal justice system.

In many ways, I think the "Go Slow" advice I gave to Congress in July after Blakely remains fully in force. Moreover, I think every member of Congress ought to review the US Sentencing Commission's recently released 15-year report, a report which deserves, in my view, far more attention than it has received to date. (The full report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.) How can Congress decide where it wants to go with federal sentencing until it completely understands where it has been?

On the same theme, I just received this letter signed by 50 diverse organizations delivered to members of House and Senate Judiciary Committees encouraging a "go slow" approach to any legislative changes and consideration of the full impact of federal sentencing policy. Here is the heart of the letter:

We, the undersigned organizations, write to encourage you to consider two key issues in regard to any legislative action in this area:

1. In order to create a sensible, long-term sentencing policy, Congress should avoid the temptation to create a "quick fix." There is no real quick fix, and seeking an end run around the important issues could have unintended negative consequences. A proposal to allow much longer sentences while retaining current restrictions on judicial discretion to mitigate punishment (the so-called "Bowman fix") should be rejected.

2. In order to have punishments that fit the crimes committed, Congress must closely evaluate the past 20 years of sentencing policy and the broader implications of those policies. Mandatory minimum sentences and other problems should be fixed in the process.

In closing, we urge you to work toward meaningful sentencing reform. Congress must strike an appropriate balance among competing goals, and must do so carefully and with meaningful participation from all of the affected parties, including the judiciary, the Sentencing Commission, criminal justice practitioners (including community and institutional corrections), academic experts, victims, and the public at large.

What of substantial assistance?

Professor Frank Bowman and this morning's great Wall Street Journal article (available here with subscription) get extra points for flagging the way a change to advisory guidelines could impact the operation of 5K1.1 and the authority prosecutors used to have to be the sole determinator of whether defendants could receive a mitigated sentence based on cooperating in the investigation and prosecution of others:

[Professor Bowman] pointed out that in many cases, prosecutors persuade defendants to plead guilty and cooperate by promising to reward them for "substantial assistance." Under the guidelines, defendants who receive such recognition are exempt from the guidelines' strict provisions. Now that the guidelines are only advisory, defendants may see less need to cooperate. "The Department of Justice has just lost all of its bargaining leverage" with defendants, asserts Prof. Bowman.

I would be especially eager to see comments from prosecutors and defense attorneys about how Booker changes the dynamics around cooperation.

More (too much?) media reading

Last night I did a quick media round-up of major Booker coverage here, but proving again that he is the blog king, Howard Bashman has collected here links to a straggering number of articles about the ruling. Bonus point to readers who highlight articles or quotes of particular note.

I find particularly interesting the "on-the-ground" local stories such as those today from the Boston Globe, the Detroit Free Press, and the Pittsburgh Post-Gazzette. Also, this article from The Oregonian reports on a sentencing in which a federal district judge recognized the guidelines were advisory but imposed the guidelines sentence anyway.

The revenge of Breyer?

The more I think about the Booker outcome, they more amazed I am that Justice Breyer found a way to win the federal sentencing battle despite having lost the Apprendi/Blakely war. As one reporter put it to me, we might call the outcome "The revenge of Breyer." To echo again my new favorite song from The Who, the fitting Won't Get Fooled Again, in a lot of cases for a lot of defendants the new federal guidelines boss (created by US Supreme Court Justice Breyer) may look a lot like the old guidelines boss (first created by then-US Sentencing Commissioner Judge Breyer). For more explanation of this point, see my post The FSG are dead, long live the FSG!!

That said, in some courtrooms and certain cases, a new advisory sentencing world may look a lot different than the old world. Only time, and lots of litigation, will reveal the real impact of Justice Breyer's remedial handiwork, which ultimately sets up a remarkable experiment in advisory guideline sentencing and creates the possibility of developing a (long-desired) purpose-driven "common law of sentencing." (Of course, we also have to wonder how long Congress might let such an experiment operate.)

Personally ironic for me is that I think Justices Stevens, Scalia and Thomas have a much stronger legal argument on the remedy in Booker, and yet Justice Breyer's opinion for the remedial majority creates by judicial fiat a system of sentencing that looks a lot more like the idealized guideline system that, I believe, early advocates of guideline reform sought. For more on these point, see generally my early articles about the old mandatory system in A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 STANFORD LAW & POLICY REVIEW 93 (1999) and Balanced and Purposeful Departures: Fixing a Jurisprudence that Undermines the Federal Sentencing Guidelines, 77 NOTRE DAME LAW REVIEW 21 (2000).)

As a last few thoughts for this post, I think it is appropriate and important to still view the federal sentencing story as the minor (headline-grabbing) battle in the broader jurisprudential war taking place on the Supreme Court. By my read, Booker does not significant change the basic Blakely equation for the states (which is still where over 90% criminal cases are handled), although it does confirm that states cannot evade Blakely through "administrative guidelines" while they apparently can evade Blakely through "advisory guidelines" enforced by judicial review. Thus, it seems likely states with guideline systems will continue to move toward Blakely-izing their systems to in fact give more effect and substance to the jury trial right.

In addition, it is also important to note that the broader jurisprudential war being waged within the Supreme Court will continue in the terms ahead. Booker did nothing to clarify many of the critical questions that Blakely left in its wake, question such as the scope and application of the prior conviction exception (background here) or the nature of Blakely admissions (background here). As I detailed in this post last month, states need more guidance on Blakely ASAP, and the only obvious message that comes from Booker for states is that the Supreme Court remains deeply divided on these issues.

Quick retroactivity thoughts

Many are asking, for understandable reasons, about the prospect of Booker's retroactive application. The simple answer is that Booker does not speak to the question, and thus some future case (soon?) will have to make a definitive ruling on this issue. However, as a number of commentators have already noted, the dueling opinions for the Court seem to provide conflicting tea leaves to read.

Justice Stevens' opinion for the Court suggests the Court is just "reaffirm[ing] our holding in Apprendi" which might suggest application back to 2000, while Justice Breyer's opinion for the Court speaks of Booker as if it is a "new rule" only applicable to pending cases. Of course, even if Booker is a new rule, arguments can (and surely will) be made that this new rule fits into one of Teague's exceptions so as to be retroactive. But, as others like TalkLeft here have suggested, offenders whose convictions and sentences are final should not find much that is encouraging in Booker. And, especially since the lower courts have already been consistently resisting claims that Apprendi and/or Blakely are retroactive, I forecast a lot of litigation from, and little relief for, prisoners with final convictions.

But, as I have suggested here and here, retroactivity should not be a concern only of the courts. All branches of government pledge commitment to the US Constitution, and thus all branches of government should be concerned if a large number of defendants have been unconstitutionally sentenced. Indeed, I think executive and legislative officials, as well as the US Sentencing Commission, have a constitutional responsibility to at least consider possible remedies for already-sentenced defendants who, because of judicial retroactivity doctrines, may not get relief in the courts. But this is true ivory tower wishful thinking: I would be truly shocked if anyone talks at all about providing relief for old cases (beyond what courts might order), even though in a perfect world this would be a serious topic for conversation.

Media matters

Though Howard Bashman at How Appealing is always the best source for all the media links, I can provide a quick round up of some of the major pieces I have seen (mostly thanks to Howard) before calling it a night.

Especially intriguing in many of these pieces are the quotes from key players in Congress and the Justice Department, as well as some of the reflections of academics and practitioners. Perhaps readers can use the comments to quote their favorite bits of punditry.

January 12, 2005

A brief Booker break (sort of)

I will have a lot more Booker commentary tomorrow, but a few other notable sentencing items caught my eye tonight.

First, this New York Law Journal article provides a thoughtful account of "the latest in a series of cases where judges struggle with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole." The piece had me wondering again about California's new law, discussed here, making it a crime for registered sex offenders to enter the state's Megan's Law database.

Second, Marty Lederman at SCOTUSblog here notes that Roper v. Simmons, concerning the constitutionality of the juvenile death penalty, is now the only opinion outstanding from the October session. He also notes that Justice Kennedy almost certainly was assigned to write the majority opinion.

And speaking of Justice Kennedy, I found it very interesting and notable that he did not speak at all in Booker. Justice Kennedy has always seemed keenly interested in sentencing issues, as reflected in his potent speech to the ABA in 2003 assailing federal sentencing policies and in the various interesting opinions he has authored in sentencing cases. Of course, especially since, practically speaking, Justice Breyer's Booker opinion echos aspects of Justice Kennedy's ruling for the Court in Koon (which championed judicial discretion through departures under SRA), it certainly seems possible that Justice Kennedy may have played a behind-the-scenes role in the ultimate Booker outcome.

The power of parsimony (and Justice Breyer's notable omission)

I am heading home soon to crank up the The Who's fitting Won't Get Fooled Again to better understand the Booker decision (explanation here), but one more point for now about an important feature of our new advisory world order.

As I understand matters, federal judges imposing sentences after Booker remain fully bound by the dictates of 18 USC § 3553(a). See Breyer for the Court at 16-17; id. at 19 ("Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing.") That provision, as Justice Breyer explains at page 17, requires consideration of guidelines ranges, of the need to avoid disparities, and of the traditional purposes of punishment. But, the very first sentence of 3553(a) has a critical initial instruction to judges, what has been called the "parsimony provision," which states: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of punishment] set forth in paragraph (2) of this subsection." Notably, and somewhat disconcertingly, Justice Breyer's opinion makes no mention of this mandate.

Federal district courts at sentencing (and circuit courts assessing reasonableness) will have to, in my view, give considerable attention to this very important, though historically ignored, mandate that federal sentencing judges impose the lowest possible sentence to achieve the purposes of punishment. For that matter, probation officers doing presentence reports, and prosecutors and defense attorneys making sentencing recommendations, will also have to figure out what this parsimony provision means for specific cases.

But what does it really mean? Consider Freddie Booker and Ducan Fanfan. Both were involved in non-violent drug offenses. What sentence will qualify as "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"? Or let's think about some fraud cases. Was Martha Stewart's 10 month sentence "sufficient, but not greater than necessary, to comply with the purposes [of punishment]"? I can say with a some confidence, based on what I have read, that Jamie Olis will have a pretty good claim that his severe 24-year sentence is greater than necessary to comply with the purposes of punishment.

When the Justice Department was arguing for advisory guidelines in September to avoid "sentencing windfalls," I wondered here and here whether in fact sentences would end up lower in an advisory system (at least for some defendants). I suppose we will soon find out, and I will be especially curious to see how courts consider the parsimony mandate.

I also will be closely watching if courts start to consider a range of mitigating offender circumstances — e.g., family circumstances, drug dependency, lack of guidance as a youth — that mandatory guidelines had largely taken off the table. In our new advisory system, defendants have every reason (and I might even say a due process right) to raise these issues, and judges arguably now have an obligation to explain on the record whether the purposes of punishment will be served or disserved by their consideration. Fun times ahead.

The FSG are dead, long live the FSG!!

I am trying to come up with a simple take on Booker, and here it is: five Justices (the Apprendi/Blakely five) say the federal sentencing guidelines can no longer operate as mandatory sentencing rules (which is clearly how they were designed and intended to operate), but five Justices (the Apprendi/Blakely dissenters + Justice Ginsburg) have crafted the only possible remedy that would operate in a manner as close to the old system as possible.

Particularly significant, in my view, is Justice Breyer's repeated statement that, even as an advisory system, the Act still "requires judges to consider the Guidelines," Breyer for Court at 16-17, and that "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at 21-22. Thus, it appears that the FSG must continue to operate as a (shadow?) sentencing system, with presentence reports prepared (and fully litigated?) as in the past, and perhaps even with sentencing judges having to make on the record findings of what the FSG would provide.

(Indeed, as I read Justice Breyer's opinion for the Court, I think there is an argument that a district judge who fails to make (shadow?) rulings about the applicable guideline range could perhaps be subject to per se reversal. I also suppose that defendants and prosecutors might still be able to, and actually need to, appeal the (shadow?) guideline rulings because the reasonableness of the impose sentence on appeal would depend on the proper applicable guideline range.)

Also noteworthy, Justice Breyer describes a largely unchanged role for the Sentencing Commission in our new advisory world, since it "remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly." Id. at 21. But what if appellate courts start finding various of the USSC guidelines unreasonable? What good would new guidelines do? (Indeed, I wonder if (when?) some circuit panels will have ocassion to address the reasonableness of existing provisions prohibiting or greatly restricting the consideration of various potential mitigating offender characteristics like medical conditions and family circumstances.)

To put all this analysis in a much hipper way, I actually think that swing voter Justice Ginsburg must have been listening to The Who in chambers a lot. It is almost scary how fittingly the lyrics to Won't Get Fooled Again capture the Booker decision:

I'll tip my hat to the new constitutionTake a bow for the new revolutionSmile and grin at the change all aroundPick up my guitar and playJust like yesterdayThen I'll get on my knees and prayWe don't get fooled again

The change, it had to comeWe knew it all alongWe were liberated from the fold, that's allAnd the world looks just the sameAnd history ain't changed'Cause the banners, they are flown in the next war...

Back to my best medium

It sure was exciting to be on the NewsHour with Jim Lehrer, although perhaps all I clearly established was that I have a face made for blogging. ;-) I am proud that, at the end of the segment, I was able to get in a plug for the US Sentencing Commission. Indeed, as I said here after Blakely, sentencing commissions have a critical role in bringing order to the disorderly world that SCOTUS has created, and that could not be more true in the wake of Booker.

In any event, with most of the media folk now past deadlines, I have a little more time to process the decisions and to share a number of reactions. I have so much to say about all the opinions, and so many questions, I am not sure where to start. But I hope, in a series of posts over the next few hours, to highlight some big picture ideas and concerns as we all try to size up the future of federal sentencing. Stay tuned.

Commentary and more commentary

I have barely had a chance to review the Booker and Fanfan opinions, and it will likely take until the wee hours tonight before I can post any really thoughtful and reflective comments. But others in the blogshpere are already chiming in effectively:

In addition, I have been trying, without much success, to explain the decision and its impact to various media folk. I will being try again, with a little more time, on PBS tonight as part of the NewsHour with Jim Lehrer.

Questions and omissions

Looking back: What happens now to all the superceding indictments that were filed all summer long in thousands of cases? What happens in all the cases sentenced under the (formerly mandatory) guidelines without Blakely factors that now have to be processed through the new world order (e.g., Martha Stewart)?

Looking forward: Based on a very quick search, it appears that the opinions for the Court in Booker and Fanfan do not even mention Harris or Almendarez-Torres. Thus, it seems we today know nothing more about the long-term viability and application of these critical exceptions to Apprendi than we knew yesterday. I am not sure I know how Congress and the US Sentencing Commission can build a new system on the uncertain foundation Booker and Fanfan has left, but I surmise they are going to have to try.

The remedy mess

Rightfully, I am already being asked by many "Now what?" Of course, the answer to that question has many institutional permutations: Now what for Congress, now what for the Sentencing Commission, now what for state actors of all sorts. But I am especially scratching my head on the "now what" question for all the federal cases "in the pipeline." Here's the cryptic final paragraph from Justice Breyer on these issues:

As these dispositions indicate, we must apply today's holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review.... That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the "plain error" test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

I must admit that I am not completely sure what this means for on-going cases, except that we are likely to have lots and lots of litigation over what this means for on-going cases. In addition, it seems that, as suggested in my prior Rule by Judges post, the instruction that "reviewing courts [are] to apply ordinary prudential doctrines" will ensure that appellate courts have enormous sentencing powers in the days ahead.

I am especially eager to hear from litigants and lower courts personnel if they are any concrete idea what this means -- or, more generally, on how advisory guideline sentencing is really going to work.

Rule by judges?

I am still trying to process all the opinions, and I fear I won't have fully thoughtful comments until the wee hours tonight. But my first take is that the right and remedy creates an amazing irony: in a decision supposedly about respecting jury rights, the remedy will lead to sentencing rules developed by judges (until Congress perhaps steps in). And this is thanks, I believe, to Justice Ginsburg as the swing vote.

SCOTUS speaks: Booker and Fanfan have arrived!!

Not a moment too soon, we finally have an opinion in Booker and Fanfan!! All I know is that it is long and messy, but it appears Blakely applies to the federal guidelines, with Justices Stevens and Breyer both writing parts of the Court's opinion. More soon!

UPDATE: Lyle Denniston at SCOTUSblog has key language from the opinions here, and I hope to have links to the full opinions within the hour.

Here are the links: As promised, here is the link to Justice Stevens' partial opinion for the Court, here is the link to Justice Breyer's partial opinion for the Court, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas' partial dissent, here is the link to Justice Breyers' partial dissent, and here is the link to Justice Stevens' partial dissent. And here is a link to the whole messy ball of wax, including the 6 page syllabus.

I will need some time to digest all 6 opinions (6 opinions!!), which run 118 total pages (118 pages!!). But I should have lots and lots of commentary to follow throughout the day. In the meantime, I hope readers will use the comments to share their views on whether the opinion was worth the wait.

The essence of the holdings: From Stevens' opinion:

We hold that both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by JUSTICE BREYER, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.

Lucky seven?

By my count, today marks the seventh time this term the Supreme Court has plans to release opinions in argued cases. Will seven be the lucky number for Booker and Fanfan? Of course, yesterday I made this bold prediction that we will see Roper and not Booker and Fanfan today. Given my prediction track-record, this means anything else is likely to happen.

In any event, you may be now know the pre-Booker drill. Let me list here some of the recent pre-Booker "gearing up" posts:

Also, additional posts of note and background materials on Blakely and Booker and Fanfan are at my Blakely Basics page, and still more information can be accessed through the Booker/Fanfan and Blakely page links in the right side-bar.

A Blakely sentencing trial and other news

This article from the Seattle Times describes a special sentencing trial in a federal fraud case. Here is the article's account of the practice and result:

Yesterday, after about seven hours' deliberation, jurors answered 17 specific questions as part of the sentencing procedure that relies on a scoring system. They responded to questions on subjects such as the defendants' respective roles, the amount of loss and the vulnerability of victims. They didn't answer every question to the complete satisfaction of prosecutors, but the government came out on top.

In other intriguing morning sentencing news, this article from Maryland discusses an anti-abortion group's plans to protest the early prison release of a pregnant woman, and this article from Maine discusses the creation of a "mental health court" in order "to give judges new alternatives to jail for defendants suffering from mental illness."

Noteworthy pleas to stop executions

The scheduled executions of doubler murderer Donald Beardslee in California next week and of serial killer Michael Ross in Connecticut the following week continue to produce amazing developments and stories.

From California, this article details that a "former San Quentin State Prison warden and a juror who voted for Donald Beardslee's execution are urging Gov. Arnold Schwarzenegger to commute his sentence to life without parole."

From Connecticut, this article reports that the Connecticut Conference of the United Church of Christ filed a lawsuit Tuesday against the state's Board of Pardons and Parole in an effort to force the Board to hold a hearing to consider commuting Ross' death sentence to life in prison.

For more recent posts on capital clemency developments and issues, see

Blakely in the states keeps chugging along

Even though the Supreme Court keeps keeping us waiting for Booker and Fanfan, the state courts continue to churn out Blakely decisions.

Amazingly, only roughly a week into the new year, California already has 30 on-line decisions noting or discussing Blakely. I continue to wonder when the California Supreme Court will hear argument in the two Blakely cases on which it granted review nearly six months ago. I have to surmise that Court is, like the rest of us, waiting for Booker and Fanfan.

And other intermediate state appellate courts are keeping busy this week, too. From Washington, yesterday brought State v. Ermels, 2005 WL 39762, (Wash. App. Div. 1, Jan. 10, 2005), in which the court affirmed a sentence over a Blakely objection based on the defendant's waive of his rights to appeal in his plea agreement. And today brought State v. Windrow, 2005 Wash. App. LEXIS 55 (Wash. App. Div. 2, Jan. 11, 2005), in which the state conceded Blakely error in the imposition of an exceptional sentence.

January 11, 2005

A bold (and silly?) prediction

As noted previously, tomorrow the Supreme Court will hand down one or more decisions, but then, after tomorrow, the following Tuesday or Wednesday (Jan. 18 or 19) seem to be the next earliest possible decision days. Just for fun, I am going to predict now that tomorrow we won't see Booker and Fanfan, but we will see a decision in Roper v. Simmons, the juvenile death penalty case that has both sentencing and international law significance (background here and here).

I make this prediction in part because, as noted by SCOTUSBlog and Law Dork, Justices Scalia and Breyer have plans later this week to have "A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication" at American University. (All the details on the event and a link for live viewing are here.) I think the Justices' conversation would be enhanced by the release of Roper before the event. (This is, of course, just silly speculation of the kind that used to get me in trouble with this (now defunct?) blog.)

That all said, applying Murphy's Law, I should probably predict we will get Booker and Fanfan tomorrow because a decision tomorrow could put a big wrinkle in the workshop I am scheduled to do later this week at the UNC School of Law.

Another SCOTUS case to deal with (collateral) Blakely concerns?

A crackerjack reader has brought to my attention the fact that, in the Supreme Court's grant of cert. last week in Halbert v. Michigan, 03-10198 (available here), the second question presented could be of significance in the post-Blakely world. Here is the question in full form:

Is Petitioner entitled to resentencing, where counsel failed to render effective assistance by not objecting to improper scoring under Michigan's sentencing guidelines which resulted in Petitioner receiving a considerably longer sentence?

Though, obviously, this question does not directly confront Blakely issues, any further elaboration on the meaning and application of ineffective assistance in the context of (noncapital) sentencing representation could be of great import in the wake of Blakely. The Supreme Court's discussion of these matters in Glover v United States, 531 US 198 (2001), set out only the most basic of considerations.

(And yet, as suggested by Jonathan Soglin at Criminal Appeal in this post, it is not clear that the ineffectiveness question in Halbert v. Michigan is of real concern to the High Court. As detailed by SCOTUSblog in this post, the Court clearly took Halbert to address "the constitutionality of a Michigan procedure that denies a free lawyer to aid an individual who has pleaded guilty but who wants to seek a discretionary appeal in a higher court." The Court sought to confront that issue earlier this Term in Kowalski v. Judicial Circuit Court (03-407), but a standing problem got in its way.)

Reading for a virtual waiting room

While we all wait for Booker and Fanfan, I can suggest some useful (old and new) sentencing reading materials to keep us occupied in this virtual waiting room:

Though now nearly two months old, the US Sentencing Commission's 15-year report deserves, in my view, far more attention than it has received. (The full report can be accessed here, its executive summary can be accessed here, and my summary of the executive summary is here.)

Hot off the presses, the Winter 2005 issue of the Criminal Justice magazine, which is published quarterly by the Criminal Justice Section of the ABA, has a lengthy cover story on Blakely,as well as a shorter article on the recommendations of the ABA's Kennedy Commission, along with its usual collection of fine criminal justice commentary and analysis. (I wrote the Blakely piece, which is entitled "The Roots and Realities of Blakely," and I am told the issue should appear at this site before long.)

In addition, the set of comments flowing from this morning's post about the non-arrival of Booker and Fanfan make for compelling and informative reading of a different sort.

Thinking about new federal reform dynamics

With no Booker and Fanfan today, I have at least another 24 hours to speculate about the post-Booker federal sentencing world. And, though I have previously commented on how fast Congress might react to Booker and Fanfan,today I am wondering how the move of US Sentencing Commissioner Michael O'Neill to become chief counsel of the Senate Judiciary Committee (details here) might impact the sentencing work of both bodies.

At November's USSC hearings (summaries here and here), the questions coming from the Commissioners suggested a possible divide within the USSC over the so-called Bowman fix (aka "topless guidelines") if SCOTUS applies Blakely to the federal sentencing guidelines. As I recall, Commissioners O'Neill and Horowitz seemed to be trying figure out how topless guidelines might work, while Commissioner Sessions seemed concerned about re-building the federal system on the shaky precedent of Harris. I wonder if O'Neill might bring to his new job an affinity for topless guidelines (recall, as detailed here, that topless guidelines seem to be favored by the Justice Department).

Also, it is worth noting that, until O'Neill is replaced on the USSC, there is the potential for the Commission to be evenly split (3-3) on any key votes. For that reason and others, I am hopeful (though not particularly optimistic) that the President can name, and the Senate can confirm, a new Commissioner in short order.

Of course, in Congress and the USSC, nothing can or will move forward until we see Booker and Fanfan. And my sources report that, if the decision does not come tomorrow, then the following Tuesday or Wednesday (Jan. 18 or 19) seems to be the next earliest possible decision day. But if the decision does come tomorrow, I think it is possible there will be hearings in Congress and/or in the USSC before the end of January.

In other sentencing news

Though, yet again, there is no sentencing news from SCOTUS, there are recent developments in a number of other on-going sentencing dramas.

In the death penalty arena, there is news from Connecticut and from California that legal efforts to block executions scheduled for later this month are not succeeding. This article from the Hartford Courant reports on two courts rejecting efforts to slow down the march of "volunteer" Michael Ross to the death chamber, and this article from law.com details the rejection of a novel legal claim by Donald Beardslee by a US District Judge in California.

In the arena of federal sentencing, this article details an on-going battle between the Sixth Circuit and US District Judge Tom Varlan over the sentencing of an elderly man caught selling guns at a flea market. The article is focused on the Sixth Circuit's ruling last week in US v. Allman, No. 04-5313 (6th Cir. Jan. 6, 2005), in which the Court finds no valid basis for the large downward departure granted by the district court. (Note that this is not the same case previously discussed here also involving an inter-court feud over the sentencing of a severely ill man in his 80s, although both defendants are among the 23 East Tennessee men — known in court circles as "the geriatrics" — nabbed by the ATF in an undercover operation. It seems clear from these cases that everyone should be sure to tell their grandparents not to expect any sentencing breaks in the Sixth Circuit.)

More waiting: still no Booker and Fanfan

According to Lyle Denniston at SCOTUS Blog here, today is another no-show for Booker and Fanfan. We may have only one more day to wait, since opinions are also due to be released tomorrow, but now I am starting to think the Supreme Court is enjoying teasing all of us.

Predicting the unpredictable

Despite my prior false predictions of the coming of Booker and Fanfan, there is now some historical precedent for thinking the decision is imminent. The last major challenge to the federal guidelines' constitutionality in Mistretta v. US was argued on October 5, 1988 and decided January 18, 1989. So, even if we do not get Booker and Fanfan today or tomorrow, history suggests the decision should be coming soon.

Rather than make bold predictions, I will simply note that, in addition to Booker and Fanfan, it is possible we will see this week opinions in Roper v. Simmons, the juvenile death penalty case, and in Shepard v. US, the criminal history case. Then again, it is also possible we are due for more waiting.

Additonal posts of note and other background materials on Blakely and Booker and Fanfan can also be found on my Blakely Basics page. And a wealth of additional information can be accessed through the various Booker/Fanfan and Blakely page links in the right side-bar.

January 10, 2005

Interesting US Sentencing Commission transition

I have heard tonight that Senator Arlen Specter, new chairman of the Senate Judiciary Committee, has picked US Sentencing Commissioner Michael O'Neill to be the Senate Judiciary Committee's next chief counsel. O'Neill is a former committee staffer and he currently is a law professor at George Mason (which has this announcement about O'Neill's appointment).

The Legal Times has this quote from O'Neill about his new position: "Part of the reason I took this job is that I anticipate being able to do oversight on the DOJ, and the possibility of working on Supreme Court nominations." He also said, "It's such an historic time to be on the committee." Of course, it is also an historic time to be involved with the US Sentencing Commission, but it looks like that body will be one Commissioner short until the President names a replacement for O'Neill.

Dealing during the interregnum

A few months ago I commented on post-Blakely, pre-Bookerdelays, deals and dodges, and I hope someone systematically studies these matters whenever this interregnum come to a close (which may be real soon). Triggering my interest today, in addition to the recent report on former Connecticut Gov. Rowland's plea deal (detailed here), is news from the White Collar Crim Prof Blog on seemingly sweet federal deals made in another public fraud case and a criminal copyright case.

I wonder if the US Sentencing Commission or others might be able to compare the number and nature of deals made pre- and post-Blakely. Just another fertile area for inquiry (and more proof Blakely ensures permanent employment for sentencing academics and researchers).

UPDATE: And speaking of interesting plea dynamics, this article updates a story, first noted here, concerning an effort by a Chicago white-collar offender to plead guilty to fraud changes without admitting to any Blakely factors.

Is it finally the big week?

I now have heard from three sources that the Supreme Court has announced that it will be issuing decisions on both Tuesday and Wednesday of this week. Thus, it is time, yet again, to strike up the (false?) alarm for the possible arrival of Booker and Fanfan. (I realize my predictions are now even less credible than the wolf-crying boy's, but that won't stop me from saying, yet again, that we may be only days away from the start of the next era of sentencing reform.)

I have already done many, many posts anticipating Booker/Fanfan posts, some of which can be found here and here. However, since the last possible Booker sighting, a number of more recent posts have spotlight relevant recent developments. Thus, as we gear up yet again, here are a few more posts I am planning to review tonight:

In addition, I think everyone contemplating the future of federal sentencing law and policy should give considerable attention to (1) The Sentencing Project's most recent 3-page report entitled "The Federal Prison Population: A Statistical Analysis," and (2) the important comments by Republican Senators about emphasizing rehabilitation coming from the Gonzales hearing last week.

Brand new year, same old Blakely

Though the cases are now dated 2005, the lower court Blakely rulings of the new year look a lot like what we saw the last few months of 2004. Notably, in just the first week of 2005, there were nearly 50 cases discussing or noting Blakely coming on-line from an array of federal and state courts. (California, not surprisingly, continues to set the Blakely caselaw pace with over a dozen Blakely on-line rulings for the week alone).

Based on an all-too-quick-review, the most notable or consequential Blakely cases from last week — besides the Idaho Supreme Court ruling discussed here and developments in Alaska and Ohio and Washington detailed here and here — appear to be:

State v. Timmons, 2005 Ariz. App. LEXIS 1 (Jan. 7, 2005) (vacating a sentencing on Blakely grounds while covering a number of important Blakely issues)

State v. Noe, 2005 Tenn. Crim. App. LEXIS 7 (Jan. 7, 2005) (reducing a sentence from six years to five years, over a dissent, on Blakely grounds)

US v. Swanson, 2005 WL 30507 (7th Cir. Jan. 07, 2005) (ordering resentencing on non-Blakely grounds, though also asserting that the "decisions in Blakely, Booker, and Fanfan, however do not affect the manner in which findings of restitution or forfeiture amounts must be made")